A non-exhaustive list of potential Gladue Factors was compiled by the Indigenous Law Centre's Gladue Awareness Project. While this is not a definitive list, it provides key information that courts may consider when sentencing or understanding an Indigenous person's Gladue Factors. The following is a selection from the Gladue Awareness Project Final Report (pp. 23-25):
Potential Gladue Factors
- The loss or denial of status under the Indian Act, which impacts an individual’s ability to live on reserve, be a member of a First Nation, vote in First Nation elections, and access various benefits for members. This is linked to a long and complex history of Canadian laws, policies, and practices aimed at restricting the number of “status Indians”
- Attendance or intergenerational effects from family and community members’ attendance at residential schools, boarding schools, and day schools created for Indigenous children, which are known for widespread physical and sexual abuse, loss of language, culture, and traditions, disruption of family connections and community norms, and poor quality educational outcomes
- Removal or dislocation of one’s family, community, or ancestors from their traditional territories, which has led to loss of identity, culture, traditions, and ancestral knowledge, compounding feelings of isolation for individuals.
- Direct, indirect, and systemic racism in Canadian society at large, schools, workplaces, prisons, the foster care system, and the adoption system, among other areas.
- Loss of autonomy for Indigenous communities, families, and individuals, as compounded over generations due to government policies and legislation. Restrictions on collective and individual autonomy included the undermining of traditional governance systems through the Indian Act, the denial of voting rights until the 1960s, a prohibition against litigating land claims up until the 1950s, the pass system’s restrictions on mobility off reserve until the 1950s, and the permit system and peasant farming policy’s restrictions on participation in the agriculture economy until as late as the 1960s, among others.
- Loss of spiritual practices due to government policies and legislation prohibiting participation in traditional feasts, dances, and ceremonies.
- Remoteness, in that many Indigenous communities are distant from basic services and facilities that most Canadians take for granted.
- Lack of connection due to personal or family history and government practices (such as children of the Sixties Scoop or those facing intergenerational impacts of the residential school system), or due to community breakdown and fragmentation.
- Sexual, physical, psychological, emotional, verbal, or spiritual abuse leading to dissociative disorders, learned behaviours, and intergenerational impacts.
- Past and present personal, family, and community impacts of alcohol and drug abuse, including Fetal Alcohol Spectrum Disorder (FASD), Fetal Alcohol Effects (FAE), and the consequences of drug use during pregnancy.
- Personal criminal history that is linked to criminal histories of other family or community members.
- Experiences of premature deaths among family members and friends due to substance abuse, accidents, violence, and suicides.
- Personal, family, or community history of a lack of access to food, employment, healthcare, or educational opportunities.
- Family breakdown due to divorce, family violence, and alcohol or drug abuse.
- Negative experiences in the foster care system or out-adoption.
- Poor health (mental or physical), including suicidal thoughts or attempts, depression, anxiety, trauma, and diagnosed disorders.
- Interventions, treatments or counseling for alcohol or drug abuse, trauma, grief, or other mental health concerns, or a lack of access to services such as these.
- Unstable living situations in the past, present, or future, including experiences of homelessness or overcrowded and inadequate housing on reserve.
- Other experiences of poverty, both past and present.
Some of an Indigenous person’s Gladue circumstances may be either positive or negative and will have relevance to sentencing regardless. For example:
- Their quality of relationships with their spouse/partner, immediate family, extended family, and community members;
- Their support networks in terms of past and present spiritual, cultural, family, and community supports and resources; and
- Their individual strengths, including any special skills or achievements they have that might be relevant to an appropriate sentence.
Sentencing judges require individualized information that responds to both prongs of the Gladue analysis.
- What Indigenous justice traditions if any might be relevant to sentencing?
- Are culturally appropriate alternative sanctions available?
- Are restorative justice options available?
- Is community involvement possible?
- Are counseling programs available?
- What is the appropriate sentencing range in light of Gladue factors?
- Is appropriate programming likely to be available in jail for this offender?
Several court decisions have provided similar guidance on what needs to be considered at each stage of the Gladue analysis. This question of what needs to be considered is often closely related to the question of how counsel and judges can obtain this information.
- Indigenous Law Centre. "Gladue Awareness Project: Final Report." University of Saskatchewan, 2020. 23-25. https://indigenouslaw.usask.ca/publications/gladue-awareness-project.php